Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Richard Basciano, D/B/A 303 West 42nd Street Realty v. L&R Auto Parks

February 10, 2012

RICHARD BASCIANO, D/B/A 303 WEST 42ND STREET REALTY,
PLAINTIFF,
v.
L&R AUTO PARKS, INC.; ENTERPRISE PARKING COMPANY, LLC, T/A FIVE STAR PARKING, A CALIFORNIA GENERAL PARTNERSHIP; AND FIVE STAR PARKING, A CALIFORNIA GENERAL PARTNERSHIP,
DEFENDANTS.



The opinion of the court was delivered by: DuBOIS, J.

MEMORANDUM

I. INTRODUCTION

In this action, plaintiff Richard Basciano asserts a claim for breach of contract*fn1 against defendants L&R Auto Parks, Inc.; Enterprise Parking Company, LLC; and Five Star Parking ("Five Star").*fn2 The dispute arises out of a lease agreement ("Parking Lease" or "Lease") between Basciano and Five Star for a parking garage ("Garage") in Philadelphia, Pennsylvania. Plaintiff alleges that Five Star failed to pay the full amount of the rent, fees, taxes, and insurance premiums due under the Lease.

Plaintiff and Five Star have filed cross-motions for summary judgment. For the reasons that follow, the Court denies Plaintiff's Motion for Summary Judgment and grants in part and denies in part Five Star's Motion for Summary Judgment.

II. BACKGROUND

A. Parking Lease and First Two Riders

On April 11, 1997, Five Star entered into the Lease Agreement with Dimeling and Schreiber Garage Partnership, the owner of the property located at 618-634 Market Street in Philadelphia, to lease the property for use as a public parking garage. (Parking Lease, Pl. Richard Basciano's Mot. Summ. J. ("Pl.'s Mot.") Ex. C.) The Lease was for a five-year term to begin on May 1, 1997, and called for an annual rent of $410,000, payable in equal monthly installments of $34,166.00, plus taxes and fees. (Id.) On September 18, 1997, plaintiff purchased the property from Dimeling and Schreiber Garage Partnership and the Lease was assigned to plaintiff. (Deed, Pl.'s Mot. Ex. B.) On April 25, 2002, Five Star and plaintiff executed a rider to the Lease ("First Rider") extending the Lease for two years. (First Rider, Pl.'s Mot. Ex. D.) The First Rider stated, "All of the other terms and conditions of the Lease shall remain unchanged and in full force and effect." (Id.) Five Star and plaintiff executed another rider ("Second Rider") on April 20, 2004, extending the term for an additional ten months ending on February 28, 2005. (Second Rider, Pl.'s Mot. Ex. E.) The Second Rider stated, "All of the other terms and conditions of the Lease shall remain unchanged and in full force and effect." (Id.)

B. The Third Rider

Some time in 2004, Joseph Lumer,*fn3 the CEO of Five Star, and Germane Sahle, Senior Vice President of Five Star, met with plaintiff and Thomas Simmonds, plaintiff's property manager for the Garage, to discuss another extension of the Lease. (Simmonds Dep. 47, Nov. 3, 2011.*fn4 ) During that meeting, Five Star and plaintiff agreed to extend the lease for one additional year and reduce the rent to $339,992.04 per year, to be paid in equal monthly installments of $28,322.67, plus taxes and fees. (Id.) Plaintiff and Five Star executed another rider to the Lease ("Third Rider") on February 9, 2005, containing these changes. (Third Rider, Pl.'s Mot. Ex. F.) Like the First and Second Riders, the Third Rider stated, "All of the other terms and conditions of the Parking Lease shall remain unchanged and in full force and effect." (Id.)

The parties dispute the nature of the discussions that preceded the Third Rider. Plaintiff, Simmonds, and Sahle*fn5 all testified at their depositions that the parties agreed that the rent reduction would last only one year. However, Five Star contends that the parties agreed that the rent reduction would be permanent. The record contains no evidence other than the testimony of plaintiff, Simmonds, and Sahle regarding what occurred at the 2004 meeting or as to whether plaintiff or Five Star intended the rent reduction to be temporary or permanent.

C. The Fourth Rider

On February 24, 2006, Five Star and plaintiff entered into a subsequent rider ("Fourth Rider"), extending the Lease another thirty-four months until December 31, 2008. (Fourth Rider, Pl.'s Mot. Ex. G.) The Fourth Rider does not mention the rent reduction contained in the Third Rider, nor does it reference the original rent amount in the Lease. Rather, the Fourth Rider states only that "[a]ll of the other terms and conditions of the Parking Lease shall remain unchanged and in full force and effect." (Id.) The parties have presented conflicting evidence regarding the amount of rent due under the Fourth Rider.

Plaintiff produced a series of letters that Simmonds allegedly sent to Sahle beginning in March 2006. (Letters, Pl.'s Mot. Ex. L.) Plaintiff has not produced any responses to these letters, and Five Star claims that it never received any of the letters, (Def. LR FSP's Resp. Pl.'s Statement Material Facts ¶ 13), although Sahle claims he received them, (Sahle Dep. 149, Oct. 5, 2011*fn6 ). There are seven letters allegedly sent during the period covered by the Fourth Rider. (Letters, Pl.'s Mot. Ex. L.) Many contain statements that arguably demonstrate Five Star told plaintiff it understood that the rent reduction contained in the Third Rider was temporary and had agreed to pay the higher rent under the Fourth Rider. For example, in the September 18, 2006, letter, Simmonds wrote to Sahle that plaintiff was "feeling the effects of . . . the deficient remittances from Five Star. I know you are extremely busy and have assured me that this is simply an 'oversight' in the accounting department-but it is adding up!" (Id. (emphasis added).) Similarly, a letter dated April 21, 2008, states that Sahle had "advised [Simmonds] that the rent arrears situation [would] be resolved." (Id.)

However, the letters also contain evidence that Five Star had not conceded that the rent under the Fourth Rider was to be for the original amount. A March 1, 2006, letter-the first letter Simmonds allegedly sent to Five Star after the execution of the Fourth Rider-states that the rent due under the Fourth Rider reverted to the original higher amount. (Id.) The September 18, 2006, letter discussed above, also states, "The Lease speaks for itself so I can't imagine what the breakdown in communication is-the reduction was for a one-year period that passed six months ago." (Id. (emphasis added).) Finally, a letter from September 22, 2008, refers to the parties' negotiations regarding a new rider and states, "This may seem premature but before we commence any discussions regarding the lease's extension, I wanted to inform you that under no circumstances will we consider signing same for less than the $410,000/year base rent charge now in place." (Id.)

Simmonds and Sahle aver that Five Star conceded it owed plaintiff the higher rent under the Fourth and Fifth Riders and that Sahle continually assured plaintiff that Five Star would "pay the rent arrears for March 1, 2006 to the present." (Sahle Dep. 149; see also Simmonds Decl., Dec. 9, 2011, Pl.'s Mot. Ex. J, ¶¶ 12, 13.) This testimony is consistent with the letters plaintiff produced, discussed above. However, Five Star has produced evidence that undermines Sahle's and Simmonds's contentions. First, Sahle testified that Five Star's management approved the assurances to plaintiff but there is no written record of this approval. (Sahle Dep. 149.) David Damus, who worked at Five Star at the relevant time, states that, "pursuant to [Five Star] Company policy, all rent increases at that time would have to be submitted to my [sic] in writing and ultimately approved by myself and ownership." (Damus Decl., Jan. 12, 2012, Def. LR FSP's Resp. Pl.'s Statement Material Facts Ex. E, ¶ 8.) Damus also testified that, contrary to Sahle's testimony, he and Sahle never discussed a rent increase relating to the Garage. (Id.; Sahle Dep. 150.).

D. The Fifth Rider

Five Star made rent payments under the Fourth Rider in the lower amount specified in the Third Rider. (Tenant Ledger, Def. LR FSP's Resp. Pl.'s Statement Material Facts Ex. B.) When the term of the Fourth Rider ended at the end of 2008, Plaintiff and Five Star executed another rider ("Fifth Rider") to extend the term of the Lease by one year until December 31, 2009. (Fifth Rider, Pl.'s Mot. Ex. H.) The Fifth Rider did not mention the amount of rent due during its term and stated, "All of the other terms and conditions of the Parking Lease shall remain unchanged and in full force and effect." (Id.)

Plaintiff has produced four more letters that Simmonds allegedly sent to Sahle during the term covered by the Fifth Rider. (Letters, Pl.'s Mot. Ex. L.) As with the letters allegedly sent during the term of the Fourth Rider, plaintiff has not produced responses to these letters and Five Star claims that it never received any of these letters. (Def. LR FSP's Resp. Pl.'s Statement Material Facts ¶ 13.) The letters refer to the amount of rent due under the Fourth and Fifth Riders. A letter dated January 5, 2009, encloses a copy of the Fifth Rider and states that the Fifth Rider "was executed based on [Five Star's] assurances that the rent arrears due for the period March 1, 2006--present ($192,522) would be paid within ninety (90) days." (Letters, Pl.'s Mot. Ex. L.) Another letter, dated July 22, 2009, refers to a meeting that the parties allegedly planned to have thereafter to discuss the dispute over the amount of rent due. (Id.)

E. Holdover and Assignment

The parties did not execute a rider to the Lease Agreement subsequent to the Fifth Rider. However, Five Star continued to occupy the Garage and pay $28,322.67 per month, plus taxes and fees-the amount called for under the Third Rider-until October 4, 2010. (See Tenant Ledger, Def. LR FSP's Resp. Pl.'s Statement Material Facts Ex. B.) Plaintiff did not object to Five Star's continued occupancy and accepted rent payments from Five Star. (Simmonds Dep. 181.)

On September 30, 2010, Five Star sold its parking operations and name to Ampco Systems Parking ("Ampco"). (Decl. John C. Day Supp. Def. LR FSP's Mot. Summ. J. ("Day Decl.") ¶¶ 6--8, Dec. 14, 2011.*fn7 ) The original Lease Agreement stated, "Tenant may not assign this Lease or sub-let the Leased Premises or any portion thereof without Landlord's prior written consent." (Parking Lease, Pl.'s Mot. Ex. C, ¶ 6.) Five Star never informed plaintiff that Five Star was assigning its interest in the Garage to Ampco, but Ampco began making rent payments to plaintiff in the amount of $28,322.67, plus taxes and fees, on November 1, 2010. (Ampco Checks, Def. LR FSP's Statement Material Facts Ex. E.) Simmonds endorsed rent checks from Ampco with variations of "accepted under protest" and "accepted without prejudice or waiver." (Id.; Simmonds Dep. 144--45.)

While Ampco occupied the Garage, plaintiff and Simmonds had various discussions with Ampco representatives. The parties dispute the content of those discussions. Five Star alleges that the discussions centered on Ampco's attempt to renew the lease and a possible management agreement between plaintiff and Ampco. (Simmonds Dep. 160.) Five Star also points out that plaintiff testified that he contacted Ampco to tell Ampco that it "must comply with the terms of the lease." (Basciano Dep. 120, Nov. 16, 2011.*fn8 ) Plaintiff argues that he never accepted Ampco as a new tenant. When Ampco called regarding the Lease, Simmonds said, "I have no idea why you're contacting me concerning a garage that is leased to Five-Star Parking." (Simmonds Dep. 152.) Further, Five Star never notified plaintiff that it was assigning its interest in the Garage to Ampco, although Sahle told Simmonds that Five Star had sold "some of its leases" to Ampco. (Id. at 150.) Finally, the sign on the Garage continued to say "Five Star Parking," (id. at 153), and plaintiff continued to send monthly rent bills to Five Star rather than Ampco, (id. at 158).

Ampco ceased its occupation of the Garage in July 2011. (Tenant Ledger, Def. LR FSP's Resp. Pl.'s Statement Material Facts Ex. B.) The parties dispute whether Ampco left of its own accord or plaintiff evicted Ampco. (Pl. Richard Basciano's Resp. Opp'n Def. Five Star Parking's Statement Material Facts Connection Def. Five Star Parking's Mot. Summ. J. ¶ 34.)

Plaintiff initiated this action in the Court of Common Pleas for Philadelphia County on January 25, 2011. Defendants removed the case ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.